Edward O. Gorre, Appellant,
The City of Tacoma et al., Respondents
Oral Argument November 25, 2013.
As amended by order of the Court of Appeals July 8, 2014.
[Copyrighted Material Omitted]
Appeal from Pierce County Superior Court. Docket No: 11-2-05064-1. Date filed: 06/08/2012. Judge signing: Honorable Ronald E Culpepper.
Ronald G. Meyers and Tim J. Friedman (of Ron Meyers & Associates PLLC ); and Kenneth B. Gorton (of Gorton Law ), for appellant.
Marne J. Horstman (of Pratt Day & Stratton PLLC ), for respondent City of Tacoma.
Robert W. Ferguson, Attorney General, and Anastasia R. Sandstrom, Assistant, for respondent Department of Labor and Industries.
AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Joel Penoyar, J.P.T.
[180 Wn.App. 733]OPINION
¶ 1 Tacoma fire fighter Lieutenant Edward O. Gorre appeals the superior court's affirmance of the Board of Industrial Insurance Appeals' denial of his occupational
[180 Wn.App. 734] disease claim under RCW 51.32.185 . Gorre argues that we should reverse because (1) he had separate diagnoses of " Valley Fever" and eosinophilic lung disease, which qualified for RCW 51.32.185's evidentiary presumption of occupational disease for fire fighters; (2) the Board and the Department of Labor and Industries (Department) failed to apply this statutory presumption of occupational disease, which improperly shifted the burden of proof to him (rather than properly requiring the City of Tacoma to rebut this presumption); and (3) the evidence failed to rebut the presumption that he did not have an occupational disease that arose naturally and proximately from the course of his employment.
¶ 2 The City of Tacoma cross appeals (1) the superior court's finding that Gorre was not a smoker, which would preclude application of the statutory evidentiary presumption; (2) the superior court's consideration of Gorre's evidence outside the Board's record; and (3) the Board's failure to award the City's deposition costs incurred before the Board.
¶ 3 We reverse the superior court's findings of fact and conclusions of law that (1) Gorre did not have an occupational disease under RCW 51.08.140 based on its improper finding that he failed to prove a specific injury during the course of his employment, (2) Gorre did not contract any respiratory conditions that arose naturally and proximately from distinctive conditions of his employment with the City, and (3) the Board's decision and order are correct; we also reverse the underlying corresponding Board findings. Holding that the superior court did not abuse its discretion in failing to strike Gorre's evidence, we affirm the superior
[180 Wn.App. 735] court's finding that Gorre was not a smoker. Further holding that both the Board and the superior court erred in failing to apply RCW 51.32.185's evidentiary presumption of occupational disease to Gorre's claim, (1) we reverse both the Board's denial of Gorre's claim and the superior court's affirmance of the Board's denial ; and (2) we remand to the Board with instructions to follow RCW 51.32.185, to accord Gorre the benefit of this presumption, and to shift to the City the burden of rebutting the presumption of occupational disease by a preponderance of the evidence.
I. Background and Medical History
¶ 4 Edward Omar Gorre grew up and lived for 18 years in Fair Oaks, California. After graduating from high school, he attended California colleges. Gorre served in the United States Army in Operation Desert Storm from 1988 to 1990, when he returned to California and lived in Sacramento for four years. In 1997 Gorre moved to the Tacoma
area, where he worked as a professional fire fighter and fire fighter paramedic for the City of Tacoma from March 17, 1997, to May 2007. As a prerequisite for this employment, Gorre passed a demanding test of physical strength and stamina and a physical examination that included blood testing and x-rays. In 2000 he became a fire fighter paramedic; in 2007 he became a fire medic lieutenant.
¶ 5 Over the course of his career as a fire fighter and paramedic, Gorre responded to thousands of residential,
[180 Wn.App. 736] commercial, industrial, and wild fires. His duties also included fire suppression, search and rescue, and " overhaul," which involves looking for seeds of fire to make sure the fire does not start up again. Administrative Record (AR) at 1055. He was exposed to smoke, diesel, chemicals, and mold when responding to fire calls, " Hazmat"  calls (hazardous material spills), lockouts (from cars and houses), daily building inspections, car incidents, and medic calls. Such exposures frequently placed him in close contact with patients with fever, H1N1 flu virus , and other respiratory diseases. Gorre did not wear respiratory protection when he fought wildfires, inspected manufacturing plants, dug trenches, or responded to medical calls. Similarly, Gorre did not wear a " self-contained breathing apparatus" (SCBA) during overhauls ; instead, his face was completely exposed. AR at 1055.
¶ 6 Between 2000 and 2005, Gorre and his colleague Darrin S. Rivers traveled to California and Las Vegas several times for vacation, including a trip to Las Vegas in November 2005. Two years later, beginning in February or March 2007, after ten years on the job, Gorre experienced fatigue, night sweats, chills, and joint aches. On April 17, he filed an accident report with the City, stating that during a lung biopsy his physician, Dr. Paul Sandstrom, had found evidence of an inhalation injury. Dr. Sandstrom's biopsy revealed upper lobe pulmonary infiltrates  and granulomatous
[180 Wn.App. 737] lesions . Dr. Sandstrom referred Gorre to Dr. Christopher Goss, a pulmonary specialist, who began treating Gorre on May 2, after his lung biopsy. Dr. Goss initially diagnosed Gorre with hypersensitivity pneumonitis, a respiratory disease, and treated him with steroids; almost a year later, on March 19, 2008, Dr. Goss again saw Gorre and continued to believe that the respiratory disease affecting Gorre was hypersensitivity pneumonitis.
¶ 7 The next month, in April, Gorre saw a dermatologist, who evaluated a nodular skin lesion on his forehead. Its biopsy showed that Gorre had coccidioidomycosis, also known as " Valley Fever."  Dr. Paul Bollyky, from the University of Washington Infectious Diseases Clinic, also diagnosed Gorre with Valley Fever  and initiated therapy.
A. Administrative Denial of Industrial Insurance (Workers' Compensation) Benefits
¶ 8 Gorre filed a form with the City reporting his occupational injury; he also filed an application for workers' compensation benefits with the Department of Labor and Industries. He reported that Dr. Sandstrom had " found
[180 Wn.App. 738]evidence of [an] inhalation exposure upon biopsy of lungs" ; but he did not include medical testimony, doctors' notes, or records to support his claim of inhalation exposure. In the application blank asking for the address where his injury had occurred, Gorre did not specify a location. Gorre also submitted Dr. Peter K. Marsh's evaluation that Gorre had Hepatitis C exposure, which was likely work related. The City requested Gorre's medical report, records, and chart notes from Dr. Sandstrom and Edmonds Family Medicine; but it received no response.
¶ 9 The City denied Gorre's lung disease claim. In February 2008, the Department also denied Gorre's lung disease claim, saying it was not an occupational disease under RCW 51.08.140. Gorre requested reconsideration, asserting that he had eosinophilic pneumonia/hypersensitivity pneumonitis, which were lung diseases considered presumptive occupational diseases under RCW 51.32.185(1)(a). On March 26, the Department issued an order stating that the City was responsible for Gorre's Hepatitis C exposure and for Gorre's interstitial lung disease, finding that both hepatitis C  and interstitial lung disease were occupational diseases and that the City would pay Gorre all medical and time loss benefits.
¶ 10 In September 2008, the City asked Dr. Garrison Ayars to determine Gorre's condition and to consider the RCW 51.32.185 statutory presumption of occupational disease for fire fighters. In October, the City sent Dr. Ayars' evaluation to Dr. Goss, stating that if Dr. Goss did not
[180 Wn.App. 739] respond, the City would assume he concurred with Dr. Ayars' evaluation. In March 2009, Dr. Goss responded that he disagreed with Dr. Ayars' evaluation.
¶ 11 On March 24, 2009, the Department (1) cancelled its March 26, 2008, order stating that the City was responsible for Gorre's interstitial lung disease; and (2) instead denied Gorre's claim on grounds that there was no proof of specific injury, his condition was not the result of industrial injury, and his condition was not an occupational disease under RCW 51.08.140.
B. Appeal to Board of Industrial Insurance Appeals
¶ 12 Gorre appealed to the Board of Industrial Insurance Appeals and moved for summary judgment. He argued that (1) he was entitled to the presumption of occupational disease set forth in RCW 51.32.185; (2) the Department had failed to apply this RCW 51.32.185 presumption of occupational disease; and (3) under RCW 51.32.185, the burdens of proof, production, and persuasion rested on the City. The City responded with declarations from Dr. Emil Bardana, Dr. Ayars, Angela Hardy, Britta Holm, and Jolene Davis, among others.
1. Industrial Appeals Judge hearing and ruling
¶ 13 The Board's Industrial Appeals Judge (IAJ) ruled that for the statutory occupational disease presumption to apply, Gorre had to provide at least some supporting medical information or an affidavit from one of his doctors--some evidence other than a mere
allegation that he had a lung condition. The IAJ denied Gorre's motion for summary judgment because he had failed to provide such ...